General Teamsters Union, Local 483

924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD General Teamsters Union , Local 483 and Ida Cal Freight Lines, Inc. Case 19-CC-1715 July 15, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On September 18, 1986, Administrative Law Judge David G. Heilbrun issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief; the Respondent, General Team- sters Union, Local 483, filed cross-exceptions, a supporting brief, and a separate answering brief; and the Charging Party, Ida Cal Freight Lines, Inc., filed a brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, the cross-excep- tions, and briefs and has decided to affirm the judge's rulings, findings, and conclusions, as modi- fied, and to adopt the recommended Order. Ida Cal Freight Lines, Inc. is a trucking firm, op- erating in 36 States from its Nampa, Idaho termi- nal. At the time of the hearing, Ida Cal had 135 employee-drivers who were covered by a collec- tive-bargaining agreement that expired February 28, 1986. Ida Cal also had 80 to 85 owner-operators whose employee status is in issue . The Respondent contends that the owner-operators are employees; Ida Cal argues that they are independent contrac- tors. On November 8, 1985, the Respondent filed an 8(a)(5) charge against Ida Cal, alleging that Ida Cal had failed to apply the terms of the existing collec- tive-bargaining agreement to the owner-operators. On January 29, 1986, the Regional Director dis- missed the charge on the ground that the owner- operators are independent contractors, and the General Counsel thereafter denied the Respond- ent's appeal of the dismissal. In November 1985, the Respondent also filed a grievance seeking a de- termination that the owner-operators were covered by the collective-bargaining agreement. Subse- quently, it demanded arbitration of the grievance. Ida Cal rejected the grievance on substantive and procedural grounds and refused to arbitrate the matter. In January 1986 the Respondent Union filed a Section 301 action in United States District Court for the District of Idaho presenting the owner-operator issue . In February 1986 Ida Cal filed an 8(b)(4)(ii)(A) charge against the Respond- ent, resulting in the complaint giving rise to this proceeding. On April 16, 1986, the United States District Court stayed its proceedings pending the Board's decision in this case. Underlying the 8(b)(4)(ii)(A) issue is the dispute over the status of owner-operators. We agree with the judge, for the reasons set forth in his decision, that the owner-operators, including those who have lease-purchase agreements with Ida Cal, are independent contractors and not statutory employ- ees. In addition to Don Bass Trucking, 275 NLRB 1172 (1985), and Precision Bulk Transport, 279 NLRB 437 (1986), on which the judge correctly relied, see Container Transit, 281 NLRB 1039 (1986). We do not agree with the judge that the com- plaint warrants dismissal because of insufficiency in the pleading. The complaint's substantive allega- tions, paragraphs 5 and 6, allege: 5. (a) On or about November 11, 1985, Re- spondent filed a grievance with Ida Cal pursu- ant to the terms of the Contract requesting that "owner-operators" be covered by the Contract including the union security clause . . . . (b) At all times material since November 11, 1985, Respondent has demanded that Ida Cal proceed to arbitration pursuant to the terms of the Contract regarding the grievance de- scribed above in subparagraph (a). 6. On or about January 7, 1986, Respondent filed suit under Section 301 of the Act asking that the "owner-operators" be covered by the terms of the Contract, including the union se- curity clause . . . . [Emphasis added.] Paragraph 9(a) states that an object of the Re- spondent's conduct "is and has been," to force the independent contractors to join the Respondent, and paragraph 9(b) alleges that an object "is, and has been," to require Ida Cal to enter into an agreement prohibited by Section 8(e) of the Act. (Emphasis added.) Although the judge's decision is not entirely clear, it appears that the judge viewed the General Counsel's position to be that the Respondent's con- duct was lawful at the outset and became unlawful only upon the Regional Director's January 29, 1986 determination that the owner-operators are in- dependent contractors. The judge concluded that the complaint is inadequate because it alleged only that the Respondent engaged in the original actions of November 1985 and January 1986 and not that the Respondent has continued to maintain those ac- tions in the sense of not withdrawing them. In the 289 NLRB No. 120 TEAMSTERS LOCAL 483 (IDA CAL) 925 judge's opinion, the latter was "the real conten- tion" and "should have been so pled." We dis- agree. We view the General Counsel's position to be that the owner-operators are independent contrac- tors and that the Respondent's filing of the griev- ance and lawsuit, and the continuation of those ac- tions, violated Section 8(b)(4)(ii)(A). We find that the complaint properly pleads the filing of the grievance and the filing of the lawsuit in a straight- forward manner. Although the complaint does not specifically allege that the Respondent is continu- ing to press its actions, the complaint language ade- quately indicates that the actions are ongoing. Ac- cordingly, we conclude that the complaint is suffi- cient to plead the General Counsel's theory of the case. Alternatively, the judge recommended that the complaint be dismissed on the merits. For the fol- lowing reasons, we agree. In Hotel & Restaurant Employees Local 274 (War- wick Caterers), 269 NLRB 482 (1984), the Board held that a Regional Director's dismissal, and the General Counsel's upholding the dismissal, of a union's prior 8(a)(5) charges involving single-em- ployer and accretion issues did not preclude the union from raising the issues as a defense to an 8(b)(7)(C) allegation. The Board held that such dis- missal did not serve as a determination of the unit issues. The Board stated (269 NLRB at 483): [T]he Board is bound to hear, receive, and consider the Respondent's answer at a trial-like hearing. The Regional Director's prior consid- eration and investigation of the earlier charge serves a more limited and discretionary func- tion than the hearing necessary under the Act and cannot, therefore, serve as replacement for the Board's adjudicatory responsibility. In its supplemental decision following remand to the judge, the Board rejected the union's defense on the merits and concluded that the union's pick- eting violated Section 8(b)(7)(C). Hotel & Restau- rant Employees Local 274 (Warwick Caterers), 282 NLRB 939 (1987). The Board, however, reversed the judge's finding that the union violated Section 8(b)(3), (2), and (1)(A) by insisting on arbitration and seeking through the grievance procedure to compel application of its bargaining agreement with Elan to Warwick Caterers' employees , a sepa- rate unit. The Board held that the union's griev- ance action did not violate the Act because the unit question had not previously been determined by the Board. The Board stated, "Therefore, at that point, it was not unreasonable for the Union to continue to maintain its position on the single-em- ployer and accretion issues and attempt to have an arbitrator resolve the dispute." 282 NLRB 939. The two Warwick Caterers decisions are applica- ble in this proceeding to both the grievance-arbira- tion and the Section 301 actions. The complaint al- leges, in essence, that the Respondent took these actions to compel union representation of the inde- pendent contractors. Although the Respondent did take the actions to compel representation of Ida Cal's owner-operators, there had been no adjudica- tory determination at that time, or at the time of the complaint or the hearing, that the owner-opera- tors were independent contractors. Furthermore, the Respondent's actions were consistent with a goal of obtaining an adjudication, through arbitra- tion or court action, of the status of the owner-op- erators; the Respondent did not strike or picket. In addition, the Respondent's contention that the owner-operators are statutory employees was not unreasonable. The lease and lease-back or lease- purchase arrangements are recent developments. They began in 1984, often involving former em- ployee drivers; the arrangements increased during 1985 and into 1986. Importantly, in determining owner-operator status, the Board uses the right-of- control test, which depends on the facts of each case, which is not determined by any one factor, and which often presents a close issue of fact. Teamsters Local 705 (Emery Air Freight), 278 NLRB 1303 (1986), enf. denied in relevant part and remanded 820 F.2d 448 (D.C. Cir. 1987), in which the Board held that the union's grievance filing violated the Act, is distinguishable. The Board found that the union's grievance was not intended to preserve existing bargaining unit jobs, a legiti- mate work preservation object, because the union never represented the employees who did the work. Rather, in the context of threats and a strike, which had an unlawful secondary object, the Board concluded that the Union's grievance filing likewise had an illegal objective. By contrast, here the Respondent did not threaten or strike, and be- cause the question whether owner-operators are employees turns on the facts of each case and had not yet been determined through an adjudicatory process, the Respondent had a legitimate object in seeking a resolution of the issue through grievance arbitration and through a Section 301 lawsuit.' ' Chairman Stephens and Member Cracraft find it unnecessary to decide whether Emery Air Freight was correctly decided, they agree it is distinguishable. Member Babson agrees that Emery Air Freight is distinguishable and further finds it unnecessary to pass on the judge's discussion of that case here In dismissing the complaint, Member Babson additionally relies on the fact that Ida Cal had control over the independent contractors that were the subject matter of the grievance and of the Sec 301 action filed by the Respondent 926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD For the above reasons, we agree with the judge that the complaint should be dismissed. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Daniel R. Sanders, for the General Counsel. Louis L. Uranga (Uranga & Uranga), of Boise, Idaho, for the Union Respondent. Robert M. Pattison (Jackson, Lewis, Schnitzler & Krup- man), of San Francisco, California, for the Charging Party. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. This case was heard 14 and 15 May 1986 at Boise, Idaho. The charge was filed 12 February 1986 and the complaint issued 28 February 1986. The primary issue is whether General Teamsters Union, Local 483 (Respondent) threatened, restrained, or coerced persons with an object of forcing or requiring those self-employed to join a labor organization, or an employer to enter into an agreement prohibited by Section 8(e) of the National Labor Relations Act, and culminated such conduct by filing suit under Section 301 of the Act, in violation of Section 8(b)(4)(ii)(A) of the Act. On the entire record, including my observation of the demeanor of witnesses and after consideration of briefs filed by the parties, I make the following FINDINGS OF FACT 1. JURISDICTION Ida Cal Freight Lines, Inc. (Ida Cal) maintains an office and principal place of business in Nampa, Idaho, where it is engaged as an intrastate and interstate truck- ing company with annual gross sales of goods and serv- ices valued in excess of $500,000, of which more than $50,000 was derived from customers outside the State of Idaho or were provided customers within Idaho, which were themselves engaged in interstate commerce by other than indirect means. Additionally, Ida Cal annually purchases and receives goods and materials at its Idaho facilities valued in excess of $50,000, which were re- ceived directly from sources outside that State, or from suppliers within Idaho, which in turn had obtained them directly from sources outside the State. On these admit- ted facts, I find that Ida Cal is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. ALLEGED UNFAIR LABOR PRACTICES A. Basis of Analysis 1. The independent contractor issue a. Company operations Ida Cal is a trucking firm engaged as an irregular route common carrier under Interstate Commerce Com- mission (ICC) regulation. From a Nampa, Idaho terminal it operates in 36 States. Its complement of drivers was formerly a standard work force of the industry and represented in collective bargaining by Respondent. Early in 1984 the imminent retirement of certain trucking equipment led to creation of several lease-purchase agreements, often with persons Ida Cal had been employing. In such cases, the lessee typically paid 10 percent down on one or more tractor units with potential for monthly payments over 3 years to a time of optional buy-out. Coextensively, the lessee was committed to a "transportation agreement" in which as "contractor" an industry termed "truck and driver" would be furnished Ida Cal. The number of such lease and lease-back arrangements increased during 1985 and into 1986. The contracting person or entity was termed an "owner-operator." Addi- tionally, Ida Cal utilized truck and driver services by other contractors who simply owned tractors or con- trolled such equipment by some unrelated means. In the recent representative past, an approximate overall config- uration was that Ida Cal had 80 to 85 owner-operators based on 30 transportation agreements with outsiders, plus 8 to 10 lease and transportation agreements of which half were with persons who previously had been company drivers and which covered a total of 15 tractor units. In contrast with combined services provided by these owner-operators, a numerically predominant group of 135 "employee drivers" remains as the major compo- nent of Ida Cal's total personnel. Ida Cal strives to provide reliable trucking of food products and freight by an array of pickup, delivery, backhauling, brokered loads, and related services. To this end, it requires company drivers and invites owner-oper- ators, or their hired drivers, to telephone in on a regular basis for dispatch. The system also involves frequent call- ing to dispatchers from the road, customer premises, or distant points. The entire activity is permeated with reg- ulatory requirements and traditional business practices under which driving logs, trip reports, bills of lading, ex- pense receipts, and miscellaneous related documents are accumulated for submission on completion of specific trips. b. The documented arrangements The basic equipment lease served to identify units, es- tablish costs and values, state maintenance, repair, oper- ation, and insuring covenants, express the lessee's right of termination and lessor's rights in event of default, and closed with standard contractual verbiage. The transpor- tation agreement evolved from what was originally used in 1984-1985 to one of revised form and content as intro- TEAMSTERS LOCAL 483 (IDA CAL) 927 duced for 1986. Both covered compensation to owner- operators, apportionment of insurance coverages, estab- lishment of impress account (later "escrow fund") and recitations of regulatory compliance. In terms of direct fulfillment of purpose, the earlier edition stated simply that the owner-operator "will either drive the Equipment or provide a driver at his own expense [as controlled and directed by Contractor]." A "Policy Statement, 1985" as its Exhibit A enlarged on various financial aspects of the transportation agreement. The current version is pro- nouncedly more detailed, tightly specifies numerous rights of Ida Cal, states that the owner-operator "shall determine the means and methods of performance of all transportation services [so] undertaken," and expressly disclaims any intent by the parties to create an "EM- PLOYER-EMPLOYEE" relationship by the contract. An even more extensive "Addendum" became effective during April 1986. Ida Cal publishes and disseminates an "Information, Policies and Procedures" binder covering a variety of subjects with numerous reminders concerning Depart- ment of Transportation (DOT) and Federal Highway Administration (FHA) regulations, plus an extensive closing portion on the correct handling of perishable loads. This document, suitable as it is for the guidance of those actually driving trucks, was incorporated by refer- ence in original transportation agreements for compli- ance by the contracting owner-operator. c. Indicia of status Ida Cal's many regular company drivers continue to be treated as employees under the general terms and conditions obtained from the most recent collective-bar- gaining agreement. Thus, they are paid on a per mile, per weight basis by weekly net checks after standard withholdings, have vacation and holiday benefits, receive noncontributory group life, health and dental insurance, and are to observe particular rules of motoring, routing, and refueling. Owner-operators earn a percentage of revenue paid by customers for the loads hauled, purchase their own fuel, pay for repair and maintenance costs of the leased trac- tor unit, select their own itinerary subject to delivery commitments, employ qualified drivers at their discre- tion, and draw against their impress/escrow account for expense money. In practical terms, the chief document passing regularly from Ida Cal to owner-operators is a weekly "settlement sheet." Ken Hobbs is employed as a full-time accountant to prepare, to issue, and to correct the settlement sheets and accompanying paperwork in support of the various credits and deductions. It is here that compensation of owner-operators is entered based on the principal contractual basis of 73 percent of reve- nue plus special revenue items for other compensable services. From total earnings, the numerous deductions or adjustments are made. Most frequently these cover fuel purchases when made from Ida Cal itself, rated fuel, and mileage taxes in the states traveled, repair or mainte- nance services when procured from Ida Cal, insurance premium payments for coverage arranged through Ida Cal or on its own policies, and proportional payments of the basic equipment lease cost amounts. The net yielded from all applicable calculations represents clear income to the owner-operators after payment due for the leased tractors, contractual outlays, and particular operating ex- pense of the weekly period in question. Owner-operators do not receive vacation, holiday, nor insurance benefits from Ida Cal. After a return home, they are not required to accept new loads if they have not reported availabil- ity. When at a distant delivery point, and following de- livery, they are permitted to obtain brokered loads to other points or generally back toward the Pacific North- west subject to approval by Ida Cal's dispatcher. The power of approval is retained in order to better assure that equipment actually at some distant point will be first committed to customer needs at that location. DOT regulations prescribe minimum qualifications for those operating motor vehicles, require the thorough completion of a daily log showing driving, duty, and rest times within the spacing of 24-hour and 8-day limits, and characterize a regulated motor carrier as "employ[ing] a person to drive when it so requires or permits" this func- tion in its business and regardless of whether the vehicle is owned by the motor carrier. In these regards, Ida Cal administers DOT driving tests to persons proposed by owner-operators for a $50 charge, and monitors trip log submissions by owner-operators or their hired drivers. Further, the earlier version of the equipment lease recit- ed that Ida Cal was not to be considered owner of the leased unit, a point about which the current equipment lease is silent. d. Particularized evidence Within the broad operational outline shown to be typi- cal there are significant variations, practices or episodes to consider. The most evident consists of correspondence or memoranda that relate to this issue.' On 26 February 1985 Executive Vice President Paul Sudmeier wrote to "Gerry" of T&G Leasing, Inc., an entity with whom a three-unit equipment lease had been in effect. Sudmeier's letter advanced implications of "undependability and dis- honesty" as the basis for an asserted breach of the trans- portation agreement and, relatedly, the equipment lease under its sections 1 and 3(d). Gerry was requested to im- mediately turn in unit 196, with the writer's hope ex- pressed that other units under lease would be run better to avoid further terminating. On 25 and 28 June 1985, Day issued memoranda to all owner-operators concerning per mile insurance rates that were increased and, as an addendum to the Company's policies statement at the time, the "release" of a contrac- tor to secure loads was preconditioned on detailed advice to a dispatcher of its destination, and revenues to the contractor would not be settled until actually re- ceived by Ida Cal. On 26 September 1985, Richard Carter, Ida Cal's president, issued a lengthy memorandum to all owner- operators on the subject of insurance rates, with particu- lar reference to a current "industry crisis" and the likeli- ' I disregard a memorandum written 30 November 1983 from then-op- erations manager John Day to all drivers on grounds that it predates ma- terial times of this case 928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hood of soon sharply increased premium rates for less coverage. The memorandum advised that a "dramatic" increase to 6 cents per mile would be imposed effective I October 1985, and that this could soon increase to an- other penny if insurance carriers invoked a penalty clause for a retro-fund reserve. Carter's memorandum closed with a pointed reminder of how accident-free driving would be the best salvation into the immediate future. On 10 October 1985, Day tersely advised owner- operators that the retro-fund surcharge had been imple- mented by the insurance carrier, resulting in a retroac- tive increase of 1 cent per mile subject to reversion again to a basic 6 cents if no claims arose during a 60-day period. On 27 January 1986, Sudmeier wrote to an Idaho at- torney for certain owner-operators including T&G Leas- ing. This letter alluded to considerable "unpaid rent" on several of the tractor units leased to T&G, and demand- ed their return or payoff by an early date. Illustrative testimony was given by owner-operators Richard Smith and Robert Stewart, by former owner-op- erator Jeff White, and by former company driver Howard Morris. Smith is actually Ida Cal's director of maintenance, and in a capacity separate from this em- ployment an owner-operator of three tractors leased from the Company. Smith hires his own drivers in reli- ance on Ida Cal's screening, and otherwise routinely ful- fills a transportation agreement. He testified that mainte- nance and mechanical repair of his leased tractors would be undertaken most efficiently and economically because of personal expertise, either as an activity reimbursable to Ida Cal at its Nampa facility or to the extent that his drivers had such needs when on the road. Stewart is independently purchasing his own truck and for 2 years has contracted services to Ida Cal under which he, his son, and occasionally his wife have driven. All three are company qualified to drive, yet Stewart testified that on some trips his wife is along largely for companionship. Stewart also testified that he wishes not to drive eastward from Idaho, and this preference is ac- commodated by Ida Cal dispatchers. Stewart had previ- ously driven for T&G Leasing in its hauling for Ida Cal, however that relationship ended in a pay dispute he had with Jeff White as a principal of T&G. White testified at Respondent's behest, outlining that he was a former company dnver who converted to owner-operator in November 1984. He personally drove for 3 months until February 1985, when, because of chargeable accidents, he hired a driver for continuation under a transportation agreement. His entire arrangement with Ida Cal later terminated when his hired driver to- taled the unit, and White is without information about any insurance proceeds or outcome of any claim by the hired driver for injuries. White is unfamiliar with the concept of brokered loads. A settlement sheet to White dated 11 October 1985 shows that deductions of that par- ticular week included an amount of $514.90 for gross wages, subsistence, and employer withholdings on a dnver named Roy Harwood. Hobbs explained in rebuttal testimony that Harwood had been offered to T&G as an available driver for a particular trip that week spanning 2186 miles. White testified that he attempted to stay in good stead with Ida Cal's dispatchers by always accept- ing a "forced dispatch."2 Morris also testified for Respondent as a former com- pany driver from July 1983 to August 1985, during June 1985 he drove a 2-week period for owner-operator R. K. Wilson. This brief timespan was one in which Morris had actually tried out the condition of an R. K. Wilson tractor for possible purchase or lease as his own. Morris recounted that while an Ida Cal company driver his pref- erences as to load-taking and destinations were dimin- ished by the advent of Gary Wilson as "chief dispatch- er." Gary Wilson has in fact been Ida Cal's manager of operations since May 1985. Morris also testified to inci- dents when as a company driver in September 1984 he obtained a brokered load through negotiations, and when later driving for R. K. Wilson was directed by Ida Cal's dispatcher to pick up a brokered load and enter into a trip lease for its hauling with the broker. The composite of testimony regarding the Ida Cal in- formation policies binder is to the effect that it is fully complied with where written in regard to governmental regulations, is a basic source of guidance concerning ve- hicle inspection, operation, and care, is informational concerning general company dealings, and is technically valuable for its intricate description of refrigeration trail- ers. e. Holding A sharp focusing on this issue is provided from two recent Board decisions. In Don Bass Trucking, 275 NLRB 1172 (1985), a highly similar factual situation was involved as to an intrastate common carrier, and the sig- nificance of government-imposed regulations was specifi- cally addressed. The Board favorably cited Air Transit, 271 NLRB 1108 (1984), in which the accepted reasoning was that more extensive regulation of the industry af- forded lessened opportunity for control by a putative employer. To the extent inconsistent the earlier Mitchell Bros. Truck Lines, 249 NLRB 476 (1980), was expressly overruled. Precision Bulk Transport, 279 NLRB 437 (1986), was another case of comparable facts, and here the Board held that equipment leases setting forth required ICC ter- minology fixing "exclusive possession, control , and use" of a truck with the carrier was an insufficient limitation on entrepreneurial status, and that countering facts show- ing enjoyment of certain freedom by owner-operators plus the business risks they bore were, as a composite matter, more indicative of the independent contractor re- lationship.3 2 Forced dispatch is a per mile payment to owner-operators when they drive empty from a distant point to some other distant pickup point. An instance appears in White's settlement sheet of 11 October 1985 on which $172 80 was paid for 384 miles at 45 cents per mile in connection with load No. LA 14307 2 In this same vem, it is unavailing for Respondent to argue, as it does in its brief at 6, that deeming the carver an "owner of said Equipment for the purpose of subleasing " is an "additional" control going "one step fur- ther" than government-imposed regulations In reality, 45 C F R Sec 1057 12(d)(2) of the ICC expressly authorizes such a provision in any written lease TEAMSTERS LOCAL 483 (IDA CAL) 929 Here the principal subjects of lease content, personal investment by owner-operators and their discretion in hiring drivers, method of compensation, latitude in trip routing, responsibility for taxes, fees, and insurance, con- ditional right to obtain brokered loads, and emancipation from originating dispatch requirements all signify that an independent contractor relationship did arise as recited between the parties in the revised transportation agree- ment and as influentially noted by the Board in Don Bass Trucking. The applicable common law test for these situ- ations is identically stated in both Don Bass Trucking, 275 NLRB at 1173, and Precision Bulk Transport to be: Where the one for whom the services are per- formed retains the right to control the manner and the means by which the result is to be accom- plished, the relationship is one of employment; while, on the other hand, where control is reserved only as to the result sought, the relationship is that of an independent contractor. The resolution of this question depends on the facts of each case, and no one factor is determinative. On the whole record, I find that Ida Cal has not re- tained a right of controlling actual manner and means by which owner-operators perform their services. What is seen instead is a comprehensive contractual arrangement in which Ida Cal possesses enormous leverage and in- sinuates deeply into the handling of cost expenditures by or on behalf of owner-operators, yet leaving still a core situation of entrepreneurial risk-taking with typical pros- pects for business profit or loss depending on diligence and decision making. On specifics, Ida Cal's processing of nominated drivers is essentially a service for a fee, with an eye to what DOT requires, and its information binder a useful com- pendium with which owner-operators comply fully when necessary and discretionarily otherwise.4 Ida Cal's strict- ness in requiring reliable fulfillment of the truck and driver agreements is no more than other posturings be- tween customer and supplier in a generally arm's-length business relationship. 5 Further, a "sharp contrast," of the type the Board notes,6 is demonstrated in the comparison of capital investment, truck maintenance costs, compen- sation formula, occupational benefits and availability for 4 The information binder is further discountable in its material on "pre- trip inspections," ostensibly in reference to DOT regulation No 392 7 This subject of the voluminous Federal Motor Carrier Safety Regulations Pocketbook presumes only to forbid vehicle operation by a driver unless nine enumerated "parts and accessories" of the vehicle are "in good working order." The information binder expands on these nine, one of which is simply "tires," yet except for "critical tire wear" (emphasis sup- plied) no mention is made of assessing proper tire pressure In a subse- quent page entitled "equipment care" drivers are exhorted to pridefully manage the rigs, and regarding tire pressure as "important for safety rea- sons" to check it periodically and while enroute "bump tires" at every stop The literal result of this configuration is that bumping of tires would not necessarily be required when starting a trip, an unlikely cir- cumstance showing still more that the information binder is simply not to be taken that seriously The Board referred specifically to testimony in Don Bass Trucking that owner-operators were subject to termination for failure to comply with terms of the lease or other inappropriate derelictions 6 Don Bass Trucking, supra, fn 13; Precision Bulk Transit, supra, fn 14 work assignments as between owner-operators and regu- lar company drivers. Such contrasts predominate, even with some excep- tion, as with former company dnver Morris' isolated role in the full cycle of a brokered load, and the self-inflicted oddity of White being forced off his own leased truck. In the first instance, a particular business transaction went from potential to actual under close supervision of an employee available for this purpose, and as to the second instance Ida Cal did no more than harmonize its oper- ations with lawful industry regulations. While Don Bass was an intrastate carrier only, and Precision Bulk in- volved contracts viewed more as "trip leases," the facts of this case constitute an indistinguishable amalgamation of these two recent precedents. Here the essential objective was, as Sudmeier summar- izingly testified, the creation of administratively feasible permanent transportation leases with prudent autonomy retained by the owner-operators, plus a residual potential for acquiring mutually remunerative brokered, trip-leased backhauls when available, convenient and not any im- pediment to Ida Cal's basic servicing of customers. I therefore find that none of the persons having transporta- tion agreements with Ida Cal, or their hired drivers, and regardless of whether the unit or units in use were leased from Ida Cal, were its employees within scope of the es- tablished bargaining unit as last defined by the phraseolo- gy "all over-the-road truck drivers, short-line pickup and delivery drivers and full-time loaders and unloaders."7 2. The 8(b)(4)(ii) issue a. Background A settled collective-bargaining relationship between these parties has resulted in various past labor contracts. The most recent was one of 3 years' duration from 1 March 1983 to 28 February 1986. Following its expira- tion, no new labor contract has been reached. The last one expressly entitled Ida Cal to subcontract "all or any portion of its work," and provided as article XVIII on adjustment of grievances that any "differences and con- troversies relative to the application or interpretation of any of the provisions of this agreement" were subject to decisions "final upon both parties" by a four-member board of arbitration including, where necessary to resolu- tion, a selected "fifth party." Following some years as a subsidiary of major corpo- rations, Ida Cal was returned to "local ownership" in June 1983. Shortly after this, the prospect of creating op- erator-owners arose, and as early as 12 October 1983 Re- spondent's secretary-treasurer, Roy Corson wrote to Carter with notice that the bargaining agent would con- sider any such persons covered by its then-current labor agreement. Corson also requested a meeting to discuss "infusion" of owner-operators to the unit at Ida Cal. Further correspondence on the subject was exchanged, and one inconclusive grievance resulted during the period of mid-1984 to early 1985. 7 Cf J. R Simplot Co. v Idaho, 122 LRRM 2278, Idaho Sup Ct (1986), where potato loaders under contract to processing firms were held as independent contractors 930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD b. Current posture In November 1985, Respondent filed a grievance rela- tive to the owner-operators, seeking a concession that they be covered by all conditions of the labor agreement and that financial relief flow to the Union and those of the "owner-operator division." The grievance was reject- ed on substantive and procedural grounds, following which Respondent unsuccessfully attempted to obtain Ida Cal's participation in the joint process of selecting an impartial fifth arbitrator. Additionally, by letter dated 8 January 1986, Respondent's counsel, Louis L. Uranga, wrote clarifyingly to Carter about the grievance. On 17 January 1986, Attorney Uranga filed civil action No. 86-1023 in United States District Court for the District of Idaho invoking Section 301 of the Act. The complaint formally presented the essential owner- operator developments, seeking declaratory and mone- tary relief, plus that as would further appear "just and proper" to the court. The record does not disclose when the summons and complaint in this action were served on defendant Ida Cal, however, a final exchange of cor- respondence occurred between the parties in late January 1986, showing them still deadlocked on the fundamental dispute. Concurrent with these dynamics Respondent had, on 8 November 1985, filed an 8(a)(5) charge against Ida Cal as Case 19-CA-17931. This was dismissed on 29 January 1986 by the Regional Director with Don Bass Trucking as the referenced authority. An appeal of this dismissal was denied on behalf of the General Counsel by letter dated 27 February 1986 in which a page of rationale also associating to Don Bass was contained. The final devel- opment to date in the lawsuit then occurred on 16 April 1986 when the court dealt with pending motions as sup- ported by memoranda submitted following oral argu- ment. An order of that date denied Ida Cal's Motion for Summary Judgment and granted plaintiff's motion to stay proceedings in order that the litigation "be held in abeyance until a decision is reached in the NLRB action filed by defendant Ida Cal." c. Holding As a threshold reason, this complaint warrants dismis- sal because of insufficiency in the pleading. Paragraphs 5 and 6 of the complaint, setting forth the heart of the matter, allege only that in November 1985 and early Jan- uary 1986 Respondent grieved to arbitration and filed suit in United States district court, respectively. Com- plaint paragraphs 8 and 9 allege effects and objective of such activity, and beyond this the complaint, as formally amended at the hearing in minor inadvertent regards, contains only predictable conclusionary verbiage. Thus, a fair reading of this fundamental pillar of labor relations law litigation is that it accuses Respondent of having pressed for arbitration on a broad contractual question, and having sought to compel this avenue of resolution under familiar Federal district court jurisdic- tion. However, facts of the case show that both actions were well prior to the Regional Director's administrative determination to which theory of the complaint is close- ly keyed, and the ordered stay of Federal district court proceedings as issued in April 1986. The chronology of the situation is a critical consider- ation, for at the point in time when Respondent's con- duct set forth in paragraphs 5 and 6 of the complaint took place the General Counsel would presumably not have then theorized that it triggerred a violation of Sec- tion 8(b)(4)(ii)(A). It was only because of the Regional Director's administrative determination on 29 January 1986, a decision later upheld on appeal, that the General Counsel's position tilts. What follows is the inescapable conclusion that Re- spondent is not being accused of its original actions in November 1985 and January 1986, but of maintaining those actions in the sense of not withdrawing the dispute from arbitration under the now-expired contract and re- latedly discontinuing its court case. This being the real contention, it should have been so pled, but I must deal with the complaint as actually presented. The Agency is cloaked with both congressional and judicial imprimaturs of expertise, and this must manifest in matters as basic as complaint drafting. I recognize that paragraph 10 of the complaint does read, in reference to Respondent's activi- ties as referred to in paragraphs 5, 6, 8, and 9, that it "did engage in, and is engaging in, unfair labor prac- tices." However, such mere conclusionary phrasing is in- sufficient to put Respondent on notice that it should, from the time the complaint issued on 28 February 1986, be prepared to defend not only its actions as originally legitimately done, but also its role in a continuum of events colored by the particularly extraneous factor of governmental voice exemplified in the Regional Direc- tor's official refusal to issue complaint in the CA case. The fact that Uranga had introduced himself into the grievance procedure by corresponding to Carter on 8 January 1986 is insufficient to change the technical char- acter of the lawsuit he then filed on 17 January 1986, nor is there significance in this regard that the Union contin- ued with board of arbitration activity during late January 1986. Imprecision arises from the mutually exclusive asser- tions contained in paragraph 6 of the complaint as com- pared with the General Counsel's opening statement of record. In the former, Respondent's challenged action is correctly termed, asking the court to declare that owner- operators be covered by the union-security clause of the collective-bargaining agreement then in effect. As would therefore be assumed, the actual Federal district court complaint is silent on any traditional attempt to judicially compel arbitration, either in its averments or its para- graph for relief. However, the General Counsel's open- ing statement describes this action under Section 301 of the Act as one "to compel arbitration of the issue." A fundamental difference exists between these two no- tions.8 If a section 301 action seeks direct relief from the court it is founded in content of the collective-bargaining agreement; if it seeks only to compel arbitration, which if ordered need not necessarily involve the court any fur- 8 See Pressmen & Plate Makers Local 4 v NLRB, 794 F.2d 420 (9th Cir 1986), in which the court observed that "the Union has not attempt- ed to compel arbitration through a Section 301 suit " TEAMSTERS LOCAL 483 (IDA CAL) 931 ther in the controversy, the lawsuit must pass muster under Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960), and be subject to a defendant's resist- ance under principles associated to the doctrine of that case. Stated otherwise, the second type of action is not within the literature on conflict and reconciliation be- tween the arbitral and legal forums, but instead only a court involvement to the extent of assessing substantive arbitrability. Interestingly, the employer had also drifted into a self- contradictory position during the eventful month of Jan- uary 1986. Following institutional skirmishing in the ex- change of correspondence between the parties during November and December 1985, an escalation was first seen when Uranga wrote to Carter on 8 January 1986 in support of his client's grievance. Then against the back- ground of midmonth filing of complaint in court the par- ties engaged in board of arbitration activity, and by 28 January 1986 the matter was sufficiently crystalized that Carter summarized Ida Cal's position in a two-page letter of that date written to union participants on the Board of Arbitration. This lawyer-like communication rejected grievance No. 3340, raised the specter of 8(b) and 8(e) violations were the employer to succumb, and, as a stated defense that could be "in part, in the alternative" claimed that Respondent had breached the contract "by resorting to other forms for relief' beyond the grievance procedure. This last quoted passage could only refer to the freshly filed lawsuit in Federal district court, and shows that the employer did not then consider such action to be a furtherance of the contractual grievance procedure. The charge in this matter, filed only 15 days later by counsel of record here, particularizes the assert- ed unfair labor practice conduct within the meaning of Section 8(b)(4)(ii)(A) in the disjunctive, with phraseology touching both on the seeking of "arbitration or court award" but without associating the two distinct concepts. Respondent's answer to the complaint essentially admits paragraphs 5(a) and (b), however, these are devoid of al- legations introducing the concept of judicially compelled arbitration Finally, it is noteworthy that the answer admits only having "demanded arbitration until" issuance of complaint, and having voluntarily agreed to stay the court proceedings afterwards. The critical significance of this overall interplay of po- sitioning, conduct, and bindingly written expression by the parties is that arbitration was invoked only on the in- formal plane of collective-bargaining dealings, a court declaration of contract application to the basic dispute was sought, and there was never a linking of the two ap- proaches by Respondent. This lack of nexus means that for reasoning purposes in relation to the concept of coer- cive "threatening" under Section 8(b)(4)(ii)(A), the only view that may be undertaken of the court action is one confined to its intrinsic thrust and not as a matter associ- ated to, or extending from, the contractual clause on ad- justment of grievances. As an entirely independent basis for disposition, I be- lieve this complaint must be dismissed on direct examina- tion of its merits. In this alternative consideration of the case, there are two distinct grounds on which dismissal is mandated. The first is that Respondent has correctly theorized it is entitled to a heanng of some sort in terms of the dispute, and the second that irregardless its filing of suit is protected by the applicability of the United States Supreme Court's decision in Bill Johnson's Restau- rants v. NLRB, 461 U.S. 731 (1983), to this proceeding. Aside from the fundamental inclination in our jurispru- dence to accord fair hearing of disputes, the facts here singularly command such an entitlement. This is particu- larly true when the significance of refusal by the General Counsel to issue an unfair labor practice complaint as sought by a charging party is considered. Such declina- tion to act was well described by the court in Electrical Workers UE v. General Electric Co., 407 F.2d 253 (2d Cir. 1968), as "administrative only, neither formally adversar- ial nor like a trial." Another court held that unless the "rare case" of a "pure question of Board law which in- volved no factual issues or contract interpretation issues" obtained, the General Counsel's adoption of a Regional Director's refusal to issue complaint was "a final and un- reviewable decision . . . before any adversarial process or full hearing on the merits." Edna H. Pagel, Inc. v. Teamsters Local 595, 667 F.2d 1275 (9th Cir. 1982). Be- latedly, the unreviewability of the General Counsel's manner of investigating unfair labor practice charges and determination of whether to issue complaint thereon is well settled. Vaca v. Sipes, 386 U.S. 171 (1967); Dunn v. Retail Clerks Assn., 307 F.2d 285 (6th Cir. 1962); United Electrical Contractors Assn. v. Ordman, 366 F.2d 776 (2d Cir. 1966), cert. denied 385 U.S. 1026 (1967). From this composite of principles, Hotel & Restaurant Employees Local 274 (Warwick Caterers), 269 NLRB 482 (1984), is an indistinguishable precedent for dismissal here. In War- wick a union's 8(a)(5) charge founded in alter ego theory was rejected, whereupon its continued picketing was charged by the employer as being violative under Sec- tion 8(b)(7)(C) of the Act. On presentation to the Board, a remand of proceeding was ordered to substitute a "trial-like hearing" for the Regional Director's earlier upheld dismissal of the 8(a)(5) charges. The Board termed such prior consideration and investigation into the union claim of continuing rights of recognition and contract enforcement, as also separately sought through arbitration, a "more limited and discretionary function than the hearing necessary under the Act and cannot, therefore, serve as a replacement for the Board's adjudi- catory responsibility." Here Respondent is jeopardized from challenging the Regional Director's finding that owner-operators are independent contractors, and essen- tials of the situation clearly warrant a "trial-like" adver- sarial presentation. Regardless of the conviction by which the Regional Director is now persuaded that coer- cion arises from Respondent having filed suit, this subor- dinates to the labor organization's entitlement to hearing. In this regard, it is totally conjectural to say, as the Charging Party argues in its brief at 37, that Respondent "surely made its best case in its presentation to the Re- gional Director in support of the charge in Case 19-CA- 17931." On the contrary, there is no basis for such a pre- sumption, nor can it now be known what extent of pres- entation may have been made by Respondent at that ad- ministrative level. 932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Regarding the second independent ground for dismis- sal, I emphasize that the decision in Bill Johnson 's Restau- rant was a suppressive holding in limitation of Board au- thority, and the exception carved out by the court was to suits having "an objective that is illegal under federal law." The Board has applied this distinction in Teamsters Local 705 (Emery Air Freight), 278 NLRB 303 (1986), where even assuming the applicability of Bill Johnson's the union was there found to have undertaken a plainly "unlawful secondary objective" when the work to which a grievance in question pertained had never in the recent past been performed by employees it represented and thus a legitimate work preservation objective could not have been present. Here the facts are diametrically oppo- site for the work sought to be preserved within the bar- gaining unit has been traditionally covered by Respond- ent's contract as a reflection of its role in the exclusive representation of such persons." CONCLUSIONS OF LAW 1. Ida Cal Freight Lines, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not committed any of the unfair labor practices alleged in this complaint. Disposition On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed'o ORDER The complaint is dismissed. 9 It is unavailing for Charging Party to advance Laundry Workers Local 3 (Virginia Cleaners), 275 NLRB 697 (1985), for there again a labor organization had engaged in an objective that was illegal under Federal law by seeking state court enforcement of fines that it had unlawfully im- posed under the Act. io If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.